UNION OF INDIA Vs. SHAKIL AHMED ABDUL MUTTALIB

JUDGEMENT

(1.) In view of the order made by the Division Bench on 30.9.1996, the appeal was placed before the Honourable the Chief Justice for placing for final hearing and as per the order passed by the Honourable the Chief Justice, this matter is placed before this Bench.

(2.) An order of detention was made by the Additional Chief Secretary to the Government, Home Department, Sachivalaya, Gandhinagar on August 17, 1994 on being satisfied that the detenu is required to be detained under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act). A declaration under section 9(1) of the Act was made by the Additional Secretary to the Government of India on September 21, 1994 informing the detenu that he has a right to represent to the Central Government as well as to the Advisory Board against the declaration in the manner specified in the grounds of detention. The petitioner challenged the order of detention by filing Spl. C.A. No. 3767 of 1995 which was heard by the learned Single Judge on 8.5.1996. It was submitted before the learned Single Judge that the authority making a declaration under section 9 (1) of the Act ought to have informed the detenu about his right to make a representation and the name of the authority to whom the representation is to be made. It was contended before the learned Single Judge that as the declaring authority has not informed the detenu about his right to make a representation to the Declaring Officer, right guaranteed under Article 22 (5) of the Constitution of India is infringed. Therefore, it was submitted that the continued detention is vitiated.

(3.) Learned Single Judge considering the fact that the declaration was made by Additional Secretary to the Government of India and in the order, no such intimation was made, allowed the petition. Learned counsel appearing for the petitioner before the learned Single Judge drew the attention of the Court to the decision of the Honourable Apex Court in the case of KAMLESHKUMAR ISHWARDAS PATEL vs. UNION OF INDIA and ORS. reported in (1995) 4 SCC 51 in support of his contention that the authority making a declaration under section 9 (1) of the Act ought to have intimated the detenu that he has a right to make a representation to the authority making a declaration.